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BY ARTHUR S. LEONARD | An early 2014 ruling from a surrogate judge in Manhattan highlights the dangers of making a will without the assistance of somebody knowledgeable about estate law. And, it also illustrates one court’s surprising reliance on old cases rather than on the evolving precedents in same-sex partner law in the decades leading up to New York State’s 2011 marriage equality law.

In a February 14 decision, New York County Surrogate Nora Anderson resolved a disputed distribution from the estate of Ronald D. Myers, who died in 2006, by apparently making a “presumption in favor of” a relative, his mother, “as against unrelated persons,” in this case his surviving partner, Dr. Martin Ephraim. Both Myers’ mother and Ephraim have since died as well, making this a battle between their heirs.

The attorney for Ephraim’s estate, Karen Winner, has now filed a motion for re-argument, contending that the court’s decision overlooks significant precedents dating back to the 1980s establishing the “family” status of cohabiting same-sex partners.

The problems in this case stem from a homemade will Myers created in 1981, by which point he and Ephraim had already been together for 11 years. In the will, Myers designated Ephraim and his mother as executors, but when Myers died in 2006, his mother renounced her appointment, so Ephraim served as the sole executor.

In the will, Myers provided that “all monies will be left to my Mother, Roberta F. Long. And that all Stocks of IBM will be left to Dr. Robert Ephraim. And also all personel [sic] property will be left to Dr. Robert Ephraim.”

In carrying out his duties as executor, Ephraim paid over to Long, who survived her son, the roughly $40,000 in cash in the estate. At his death, Myers owned a substantial portfolio of stocks, including but not limited to IBM, which Ephraim transferred to himself, treating the non-IBM stock as “personal property.”

When Long subsequently died without a will, her administrator filed an objection to how Ephraim had distributed the stock, arguing he was entitled under the will to inherit only the IBM stock and Myers’ “personal effects.” When Ephraim himself died, his brother stepped into the case, which now pits Ephraim’s heirs against Long’s for the value of the non-IBM stock, which made up the bulk of the estate. (Winner’s motion for re-argument mentions, as the court’s opinion did not, that Myers had separately purchased annuities for his mother valued at $165,000, which passed to her outside the estate.)

On behalf of Ephraim, Winner argued that the language of the will made clear that Long’s only inheritance was to be the cash in the estate. She also argued that when Myers made the will, his only stock holdings were in IBM, so no inference should be drawn that he did not intend Ephraim to inherit other stock he might later purchase.

Counsel for the Long heirs made the opposite argument, saying that in specifying Ephraim’s inheritance of the IBM stock, Myers intended that as a limitation and that other stocks should have been treated as “monies” rather than “personal property” and distributed to Long. Any other interpretation, the heirs argued, would be “nonsensical.”

In trying to discern Myers’ intentions in making the will, Anderson cited very old precedents and wrote, “In cases in which discovery of a decedent’s intent is more difficult, courts have employed a presumption in favor of the testator’s relatives as against unrelated persons.” Though her opinion clearly indicated her understanding that the two men lived together for more than 35 years, it referred to Ephraim as Myers’ friend. Anderson is never completely explicit about it, but it seems clear she made a “presumption” that favored the mother over the “friend.”

The surrogate also found that a reference to “monies” can mean different things depending on the context — and can at times include “securities” and “stocks” — and that the phrase “personal property” can refer to “personal effects.” Indeed, Myers’ DIY will used both personal property and personal effects, and the surrogate reasoned that by mentioning stock separate from personal property he intended to distinguish between the two.

Anderson also found a lack of clear evidence that Myers’ only stock holdings in 1981 were in IBM and drew on an old legal maxim that in specifying IBM stock in his bequest, he intended to exclude any other stock from Ephraim’s inheritance. In contrast, she found that the bequest of “monies” to Myers’ mother was made “without qualification or limitation.”

Anderson concluded, “Such lack of limitation combined with decedent’s use of the plural form ‘monies’ favors a broad reading of the mother’s bequest.”

As a matter of law, then, Anderson found that Ephraim erred in distributing the non-IBM stock to himself and she granted summary judgment to Long’s estate.

In her motion for re-argument, Winner contends the court improperly applied a presumption that failed to recognize the family relationship between Myers and Ephraim and adopted an interpretation of the will contrary to what one would expect under the circumstances, with a surviving long-term partner and a mother who was separately provided for with a substantial annuity in addition to the cash in Myers’ estate when he died.

To the extent Anderson’s decision is based on a presumption that predates modern LGBT family law developments in New York, it would seem ripe for reconsideration — or possible reversal on appeal.